Opinion
Civil Action No. 1:99-CV-35-R
September 17, 1999.
MEMORANDUM OPINION ORDER
This is 42 U.S.C. § 1983 case filed by Plaintiffs Rebecca Johnson, Larry G. Smith, Delbert Cole, and Rebecca Smith, mother and next friend of Jennifer Baker, Tiffany Johnson, and Kristina Smith. This matter is before the Court on Defendants' motions to dismiss, Plaintiffs' motion for partial summary judgment, as well as other pre-trial motions.
I. FACTS AND CLAIMS
On June 29, Kentucky State Police Troopers, Pulaski County Sheriff's deputies and Russell County Sheriff's deputies searched Plaintiffs' homes and yards pursuant to a search warrant issued by the Russell District Court. The search began 10:30 p.m. and lasted nearly six hours. The search of the yards included digging a trench with a bulldozer which allegedly cracked the foundation of the residences and disturbed pipes. Plaintiffs assert that there was also damage to their personal property, including electronic equipment from their residences.
The search warrant called for a search of "the premises known and numbered as UNDER THE CONTROL OF WILEY MULLINS, KARRAH LANE, FAUBUSH, KENTUCKY." (Dkt. # 29, attachment D). The area to be searched was described as follows:
TURN RIGHT ON KARRAH LANE AND GO .9 MILES TO DOUBLE WIDE TRAVEL [sic] [trailer] ON LEFT SURROUNDED BY BLOCK BUILDING AND STORAGE BUILDING ON LEFT; BEHIND THE BLOCK BUILDING IS A SMALL TRAILER OR BUILDING USED TO STORE PROPERTY SURROUNDED BY OTHER BUILDINGS; A SIDE WALK EXISTS BETWEEN A BLOCK BUILDING AND A SINGLE WIDE TRAILER; APPROXIMATELY 10 FEET FROM THE PATIO OF THE SINGLE WIDE TRAILER LIES THE REMAINS OF THE INDIVIDUAL KILLED AS SET OUT IN THE AFFIDAVIT.Id.
The warrant also called for the search of "Wiley Mullins or any other individual on the premises." The description of the property to be seized was "stolen property, controlled substances and the remains of a decedent killed on or about August 1997." Id.
The search warrant was based on an affidavit of a witness who stated that he had seen Wiley Mullins shoot and kill a person who could not pay for the cocaine in which he had attempted to purchase, and that Mullins had buried the man beneath the sidewalk described above.
Plaintiffs assert that Defendants searched their residences and curtilage even though they were not under the control of Wiley Mullins. It appears from the record that the warrant describes the physical property that was searched, but that the property probably was not entirely under the control of Wiley Mullins and included the residences of Plaintiffs. Mullins' residence was also searched, but he is not a plaintiff in this action.
Defendants present evidence that no record was made of Mullins' transfer of the property to Plaintiffs until after the warrant was executed.
Plaintiffs filed this action under 42 U.S.C. § 1983, asserting that their constitutional rights had been violated by an illegal search. Plaintiffs also assert state law claims under Kentucky Constitution § 10, and the torts of wrongful restraint, battery, invasion of privacy and trespass.
Defendants have moved to dismiss based on various immunity theories. Plaintiff has moved for partial summary judgment on the legality of the search. Defendants have not addressed the substantive issues regarding the legality of the warrant or the search.
II. NAMED DEFENDANTS
The initial complaint named the following defendants: Kentucky Justice Cabinet; Tom Fink individually and in official capacity as a Kentucky State Trooper; Pulaski County Fiscal Court ex rel Pulaski County Sheriff's Department; Pulaski County John and Jane Does; Russell County Fiscal Court ex rel Russell County Sheriff's Department; Russell County John and Jane Does. Plaintiff filed a First Amended Complaint (dkt. # 12) on April 28, 1999, which named the following defendants: Kentucky Justice Cabinet; Scott Trotter, individually and in his official capacity as Pulaski County Deputy Sheriff; Bill Ryan, individually and in his official capacity as Pulaski County Deputy Sheriff; and Sam Catron, individually and in his official capacity as Pulaski County Sheriff.
Plaintiff moved to file a Second Amended Complaint on May 24, 1994 (dkt. # 21). The proposed Second Amended complaint names defendants: Kentucky Justice Department; Russell County; Pulaski County; Russell County Judge Executive; Pulaski County Judge Executive; Russell County Sheriff's Department; and Pulaski County Sheriff's Department.
Plaintiff filed a second "First Amended Complaint" on June 24, 1999 (dkt. # 27), which names defendants: Kentucky Justice Cabinet: Bobby Sullivan, Jimmy Antle, Alan Corbett, Terry Young, and Kevin Pickett, individually and in their official capacities as Kentucky State Troopers; E.T. Swartz, Brett Whitaker, Martin Wesley, Rodney Stevens, and Stacey Holcomb, individually and in their official capacities as Pulaski County Deputy Sheriffs; Larry Barnett, individually and in his official capacity as Russell County Sheriff; and Charles Mann, Johnny Garner, and Daniel Garland, individually and in their official capacities as Russell County Deputy Sheriffs.
Plaintiffs filed a motion to file a "Second Amended Complaint" on August 2, 1999. This second "Second Amended Complaint" does not add any additional parties, but states Plaintiffs' factual allegations in greater detail.
III. STATE TROOPERS
Plaintiffs agreed to an order of dismissal for the Commonwealth of Kentucky, Kentucky Justice Department, and the Department of State Police. A suit against an officer in his official capacity is identical to a suit against the government entity itself. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 68 (1989)). Therefore, the agreed order encompasses the state troopers named in their official capacities. The agreed order does not address the state troopers sued in their individual capacities.
Defendant Fink has moved to dismiss in his individual capacity based on sovereign immunity and qualified immunity. Eleventh Amendment sovereign immunity does not bar actions for money damages against state officials who are sued in their individual capacities under 42 U.S.C. § 1983. Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974); Foulks v. Ohio Department of Rehabilitation and Correction, 713 F.2d 1229, 1233 (6th Cir. 1983).
Defendant Fink adopts the arguments made in Defendants Catron, Trotter, and Ryan's motion to dismiss (dkt. # 22) regarding qualified immunity. As discussed below, it is premature to dismiss this case based on qualified immunity.
Therefore, Defendant Fink's motion to dismiss must be denied as to the § 1983 claim asserted against him in his individual capacity.
IV. SHERIFF DEPARTMENTS
The Pulaski County sheriff has moved to dismiss based on Eleventh Amendment Immunity (dkt. # 22). The Russell County sheriff adopted this argument in his motion to dismiss. (dkt. # 44) Plaintiffs argue that sheriffs in Kentucky are considered county officials, not state officials, and are not protected by Eleventh Amendment immunity.
Defendants rely on McMillian v. Monroe County, Alabama, 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 790 (1997), to support their claims that they are state officials. The Supreme Court held in McMillian that a sheriff in Alabama was a "policy maker" for the state, not for the county, in the area of law enforcement. Thus, the county was not liable in 1983 action, and the Eleventh Amendment protected the state and sheriff from suit. However, the McMillian court relied on Alabama law and expressly limited their holding to Alabama sheriffs, and not even in every case. Id. At 790.
Whether a public employee is a state or county government official is a matter of federal law, informed by provisions of state law involving sheriffs. Brotherton v. Cleveland, 173 F.3d 552, 560 (6th Cir. 1999). The Court should look at several factors, including "how state law defines the entity, what degree of control the state maintains over the entity, where funds for the entity are derived, and who is responsible for judgment against the entity." Id. (citing Hufford v. Rodgers, 912 F.2d 1338, 1341 (7th Cir, 1990), cert. denied 499 U.S. 921, 111 S.Ct. 1312, 113 L.Ed.2d 246 (1991)). Analyzing these factors, the Court concludes that the sheriffs act as local government officials rather than acting as an arm of the state in their daily operations. The Kentucky Constitution defines sheriffs as county officials. Ky. Const. §§ 99, 100, 103, and 106. The sheriffs are elected by county residents. They act autonomously with little or no state oversight. The sheriffs' autonomy from the county does not preclude county liability. Brotherton at 560. Because sheriffs receive most of their funding from the county and its residents, see KRS 64.090, 64.121, 70.036, the county presumably will bear financial responsibility for the judgment. See KRS 134.310 (stating that county sheriff must have a "settlement" with the county fiscal court at the end of the year, and he must pay to the fiscal court "any fees, commissions, and other income of his office, including income from investments, which exceed the sum of his maximum salary as permitted by the [Kentucky] Constitution and other reasonable expenses including compensation of deputies and assistants."). There is no evidence that a judgment would be paid from the state treasury. Furthermore, the sheriffs are not defended by attorneys from the state. Kentucky sheriffs are county officials.
However, the particular actions at issue are attributable to the state, and thus, the sheriffs were acting as state officials when they were executing the search warrant. "Where county officials are sued simply for complying with state mandates that afford no discretion, they act as an arm of the state." Brotherton at 566. In this case, the sheriffs' deputies were executing a search warrant signed by a state judge which stated "you are commanded to make immediate search of the premises." (Dkt. # 29, attachment D). By acting under the direct order of a state court, the sheriffs and their deputies in this case were acting as state officials. See Scott v. O'Grady, 975 F.2d 366, 371 (7th Cir. 1992) (holding that county official acted as arm of the state when he merely executed writ pursuant to state non-discretionary duty). Since the deputies were acting as arms of the state, they are entitled to Eleventh Amendment immunity in their official capacities.
V. SHERIFFS AND DEPUTIES IN INDIVIDUAL CAPACITIES
Defendants Trotter, Ryan and Catron have moved to dismiss (dkt. # 22) based on qualified immunity because the complaint does not meet the heightened pleading requirement for the qualified immunity defense under Veney v. Hogan, 70 F.3d 917, 191 (6th Cir. 1995). Defendant Swartz adopted this motion to dismiss. (dkt. # 40). Defendants, Barnett, Garland, Garner and Mann, moved to dismiss (dkt. # 44), adopting the arguments of Defendants Trotter, Ryan and Catron.
Plaintiffs have filed a motion for leave to file an amended complaint (dkt. # 38) which meets the heightened pleading requirements of Veney v. Hogan. The motion is well-taken and is granted.
The Sixth Circuit addressed a similar situation in Pray v. City of Sandusky, 49 F.3d 1154 (6th Cir. 1995). In Pray, local police officers had a warrant to search an upstairs apartment in building that had one upstairs and one downstairs apartment. The police stormed the wrong apartment. The plaintiffs asserted that the police continued to search even after realizing that they were in the wrong apartment. The Sixth Circuit held that the initial mistake in entering the wrong apartment was reasonable under the circumstances and protected by qualified immunity, and that defendants were protected by qualified immunity as to any search or seizure that occurred while officers were under mistaken but reasonable belief that they were in the correct apartment. Id. at 1159. However, the defendants were not entitled to qualified immunity for acts that took place after the officers discovered or reasonably should have discovered that they were in the wrong apartment. Id. at 1159-60.
Under Pray, dismissal based on qualified immunity is not appropriate at this time. There has been no determination as to whether the warrant was valid, and if not, whether a reasonable officer would have relied upon the warrant. Therefore, it would be premature to grant the state troopers and sheriff's deputies in their individual capacities qualified immunity at this time, and their motions to dismiss must be denied.
VI. COUNTIES/FISCAL COURTS
The "proposed Second Amended Complaint" names Pulaski and Russell Counties and their judge executives. The judge executives are not named in their individual capacities, so naming the judge executives is redundant with naming the county itself.
While leave to amend pleadings should "be freely given when justice so requires," Fed.R.Civ.P. 15(a), amendment is not appropriate where it would be futile. Jet, Inc. v. Sewage Aeration Systems, 165 F.3d 419, 425 (6th Cir. 1999). As discussed above, the Sheriffs' departments and the Sheriffs in their official capacities must be dismissed from this suit. Since the deputy sheriffs were acting as state agents during the acts giving rise to this suit, the County governments cannot be liable for their actions.
Therefore, Plaintiffs' motion to file a Second Amended Complaint must be denied as futile.
VII. STATE CLAIMS
Defendants argue that they are shielded from the state tort and state constitutional claims by state doctrine of sovereign immunity. Federal courts must apply state law to the supplemental state claims, including the doctrine of state sovereign immunity.
It is well established under Kentucky law that "a county has the same sovereign immunity as the state." Franklin County v. Malone, 957 S.W.2d 195, 203 (Ky. 1997) (citing Cullinan v. Jefferson County., 418 S.W.2d 407 (1967)). "In any event, it is well settled that in the absence of waiver, the county is immune from tort liability." Id. If the county has the same immunity as the state, then county officials must have the same immunity as state officials under Kentucky law.
Prior to 1986, a public official could be held liable for torts committed in the performance of ministerial (non-discretionary) acts. In 1986, the state legislature enacted K.R.S. 44.073, extending sovereign immunity to public officers and employees performing ministerial acts who engage in activities not "outside the traditional role of government" and acted "within the scope of the authority of office" at the time of the alleged negligence. Franklin County v. Malone, 957 S.W.2d 195 (Ky. 1997). The only recourse available to claimants for such acts is through the Board of Claims. Id. However, the Board of Claims's jurisdiction only covers claims of negligence. KRS 44.073(2). Sovereign immunity does not protect state officials performing ministerial acts in their individual capacity from claims of intentional torts. Kaplan v. Jefferson County Commonwealth Attorney's Office, Nos. 1997-CA-3235-MR , 1998-CA-113-MR (Ky.App. July 23, 1999). In this case, Plaintiffs asserted intentional tort claims of wrongful restraint, battery, invasion of privacy and trespass as well as violations of § 10 of the Kentucky Constitution. Therefore, Defendants are not entitled to sovereign immunity for their ministerial acts.
VIII. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Plaintiffs have moved for partial summary judgment on the issue of whether the warrant lawfully encompassed the search conducted by Defendants (dkt. #29). Defendants assert that ruling on this issue is premature because discovery is necessary to determine the validity and scope of the warrant
The Court agrees that it would be premature to rule on this issue, and Plaintiffs' motion for partial summary judgment must be denied at this time with leave to refile at the close of discovery.
IX. REMAINING CLAIMS
The claims remaining in this action are the 42 U.S.C. § 1983 claims asserted against Kentucky State Troopers Fink, Sullivan, Antle, Corbett, Young, and Pickett in their individual capacities; Pulaski County Sheriff Catron, in his individual capacity; Pulaski County Deputy Sheriffs Trotter, Ryan, Swartz, Whitaker, Wesley, Stevens and Holcomb in their individual capacities; Russell County Sheriff Barnett in his individual capacity; and Russell County Deputy Sheriffs Mann, Garner, and Garland in their individual capacities. The state law claims against Defendants also remain. All other claims and parties are dismissed.
THEREFORE, IT IS ORDERED:
(1) Plaintiffs' motion to file amended complaint (dkt. # 21) is DENIED.
(2) Plaintiffs' motion to file amended complaint (dkt. # 38) is GRANTED.
(3) Defendants' motion to dismiss (dkt. # 4) is GRANTED, and the Pulaski County Fiscal Court, ex rel the Pulaski County Sheriff's Department is DISMISSED.
(4) Defendants' motions to dismiss (dkt. #s 22 and 40) are GRANTED in PART. Defendants Catron, Trotter, Ryan and Swartz are DISMISSED in their official capacities as Pulaski County Sheriff and deputies. The motion is DENIED as to Defendants Catron, Trotter and Ryan in their individual capacities for claims under 42 U.S.C. § 1983. The motion is DENIED as to all state law causes of action.
(5) Defendants' motion to dismiss, or in the alternative, for judgment on the pleadings (dkt. # 24) is GRANTED in PART. Defendant Fink is DISMISSED in his official capacity as a Kentucky State Trooper. The motion is DENIED as to Defendant Fink in his individual capacity for claims under 42 U.S.C. § 1983. The motion is DENIED as to all state law causes of action.
(6) Defendants' motion to dismiss (dkt. # 32) is GRANTED in PART. Defendants Holcomb, Stevens, Wesley, and Whitaker are DISMISSED in their official capacities as Pulaski County Deputy Sheriffs. The motion is DENIED as to these Defendants in their individual capacities for claims under 42 U.S.C. § 1983. The motion is DENIED as to all state law causes of action.
(7) Defendants' motion to dismiss, or in the alternative, motion for judgment on the pleadings (dkt. # 44) is GRANTED in PART. Defendants Barnett, Garland, Garner and Mann are DISMISSED in their official capacities as Russell County Sheriff and Sheriff's deputies. The motion is DENIED as to Defendants Barnett, Garland, Garner and Mann in their individual capacities for claims under 42 U.S.C. § 1983. The motion is DENIED as to all state law causes of action.
(8) Plaintiffs' motion for partial summary judgment (dkt. # 29) is DENIED.
(9) Plaintiffs' motion to strike portion of Defendants' reply memorandum in support of their motion to dismiss (dkt. # 37) is DENIED. The Court will give the memorandum such consideration as is appropriate.